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EXHIBIT
99.1
EXECUTION COPY
NSTAR Electric
Company
Debt
Securities
Underwriting
Agreement
November 14,
2007
Citigroup Global Markets Inc.
388 Greenwich St.
New York, NY 10013
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
From time to time NSTAR
Electric Company, a Massachusetts corporation (the
“Company”), proposes to enter into one or more Pricing
Agreements (each a “Pricing Agreement”) in the form of
Annex I hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms
constituting the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) certain of
its debt securities (the “Securities”) specified in
Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the “Designated Securities”).
The terms and rights of any
particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and in or pursuant to the
indenture (the “Indenture”) identified in such Pricing
Agreement.
1. Particular sales of
Designated Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or
their representatives. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and
sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced
by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the
purchase price to the Underwriters of such Designated Securities,
the names of the Underwriters of such Designated Securities, the
names of the Representatives
of such Underwriters and the principal
amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) Registration statement on
Form S-3 (File No. 333-143071) (the “Initial
Registration Statement”) in respect of the Securities has
been filed with the Securities and Exchange Commission (the
“Commission”); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to the Initial Registration Statement, but including all
documents incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other Underwriters,
have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the
offering (a “Rule 462(b) Registration Statement”),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission
(the base prospectus filed as part of the Initial Registration
Statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is
hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Designated Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter
called a “Preliminary Prospectus”; the various parts of
the Initial Registration Statement, any post-effective amendment
thereto and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto but excluding any Form T-1 and
including any prospectus supplement relating to the Designated
Securities that is filed with the Commission and deemed by virtue
of Rule 430B to be part of the Initial Registration Statement
and any Rule 462(b) Registration Statement, each as amended at
the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 2(c) hereof), is
hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Designated Securities filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any
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reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such prospectus;
any reference to any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Designated Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Initial
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in
the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act
relating to the Designated Securities is hereinafter called an
“Issuer Free Writing Prospectus”;
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”) and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use therein;
(c) For the purposes of this
Agreement, the “Applicable Time” means the time
specified as such in the Pricing Agreement; the Pricing Prospectus
as supplemented by the final term sheet prepared and filed pursuant
to Section 5(a) hereof, taken together (collectively, the
“Pricing Disclosure Package”) as of the Applicable
Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule III(a) to the Pricing Agreement
does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus
and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use therein;
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(d) The documents
incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the Representatives
expressly for use therein; and no such documents were filed with
the Commission since the Commission’s close of business on
the business day immediately prior to the date of this Agreement
and prior to the execution of this Agreement, except as set forth
on Schedule III(b) to the Pricing Agreement;
(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use
therein;
(f) Neither the Company nor
any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Pricing Prospectus any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, shareholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(g) The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the Commonwealth of Massachusetts, with power and
authority to own its properties and conduct its business as
described in the Pricing Prospectus;
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(h) The Company has an
authorized capitalization as set forth in the Pricing Prospectus,
and all of the issued shares of beneficial interest of the Company
have been duly and validly authorized and issued and are fully paid
and non-assessable;
(i) The Securities have been
duly authorized, and, when Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities, such Designated Securities
will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, at the Time of
Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors’ rights and to general
equity principles; and the Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in
the Pricing Disclosure Package and the Prospectus;
(j) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture, this Agreement and any
Pricing Agreement, and the consummation of the transactions herein
and therein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Articles of
Organization or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by
this Agreement or any Pricing Agreement or the Indenture, except
such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(k) Neither the Company nor
any of its subsidiaries is in violation of its Articles of
Organization or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be
bound;
(l) Other than as set forth
in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a
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party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries; and, to the best of
the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(m) The Company and its
subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses, and (iii) have not received
notice of any actual or potential liability under any Environmental
Law or identified any actual or potential associated costs and
liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties), except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or costs and/or liability
would not, individually or in the aggregate, have a material
adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Pricing Disclosure Package and the
Prospectus (exclusive of any supplement thereto). Neither the
Company nor any of its subsidiaries has been named as a
“potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, except where such designation would not, individually or
in the aggregate, result in any actual or potential material
adverse change in the condition (financial or otherwise), earnings,
business or properties of the Company, and its subsidiaries, taken
as a whole;
(n) The operations of the
Company and its subsidiaries are and have been conducted at all
times in compliance in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, and the
rules and regulations promulgated thereunder (the “Money
Laundering Act”), and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Act is pending;
(o) The Company and each of
its subsidiaries, together with NSTAR, maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals
and
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appropriate action is taken
with respect to any differences. The internal controls over
financial reporting of NSTAR and its subsidiaries, including the
Company, were effective as of December 31, 2006, and the
Company and its subsidiaries were not aware of any material
weakness in their internal control over financial reporting as of
December 31, 2006;
(p) The Company and its
subsidiaries maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act); such disclosure controls and procedures were
effective as of December 31, 2006;
(q) There is and has been no
failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with
any provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes Oxley Act”) applicable to the Company,
including Section 402 related to loans and Section 302
and 906 related to certifications;
(r) The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Pricing
Disclosure Package and the Prospectus, will not be an
“investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(s) At the earliest time that
the Company or an Underwriter made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Designated
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act; and
(t) PricewaterhouseCoopers
LLP, who have audited certain financial statements of the Company
and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the
Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented.
4. Designated Securities to
be purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form specified in such Pricing Agreement,
and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight
hours’ prior notice to the Company, shall be delivered by or
on behalf of the Company to the Representatives for the account of
such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such
other place and time and date as the Representatives and the
Company may agree upon in writing, such time and date being herein
called the “Time of Delivery” for such
Securities.
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5. The Company agrees with
each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus
in relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable,
such earlier time as may be required by Rule 424(b); to make no
further amendment or any supplement to the Registration Statement,
the Basic Prospectus or Prospectus after the date of the Pricing
Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to prepare a final term sheet,
containing solely a description of the Securities, in a form
approved by you and attached to the Pricing Agreement as Annex IV
thereto, and to file such term sheet pursuant to Rule 433(d)
under the Act within the time required by such Rule; to file
promptly all other material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the Act; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act)
is required in connection with the offering or sale of such
Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
other prospectus relating to the Securities, of the suspension of
the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any Preliminary Prospectus or other
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) If required by
Rule 430B(h) under the Act, to prepare a form of prospectus in
a form approved by you and to file such form of prospectus pursuant
to Rule 424(b) under the Act not later than may be required by
Rule 424(b) under the Act; and to make no further amendment or
supplement to such form of prospectus which shall be disapproved by
you promptly after reasonable notice thereof;
(c) Promptly from time to
time to take such action as the Representatives may reasonably
request to qualify such Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any
jurisdiction;
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(d) Prior to 10:00 a.m., New
York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such
quantities as the Representatives may reasonably request, and, if
the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any
time in connection with the offering or sale of the Securities and
if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act) is delivered, not misleading, or,
if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance;
(e) To make generally
available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(f) During the period
beginning from the date of the Pricing Agreement for such
Designated Securities and continuing to and including the later of
(i) the seventh day following the date of the Pricing
Agreement for such Designated Securities and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery
and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives;
and
(g) If the Company elects to
rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay
to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.
6. (a) (i) The Company
represents and agrees that, other than the final term sheet
prepared and filed pursuant to Section 5(a) hereof, without
the prior consent of the Representatives, it has not made and will
not make any offer relating to the Designated Securities that would
constitute a “free writing prospectus” as defined in
Rule 405 under the Act;
(ii) Each Underwriter
represents and agrees that, without the prior consent of the
Company and the Representatives, it has not made and will not make
any offer
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relating to the Designated Securities
that would constitute a free writing prospectus that is required to
be filed with the Commission pursuant to Rule 433 under the
Act; provided , however , that prior to the
preparation of the final term sheet in accordance with
Section 5(a) hereof, the Underwriters are authorized to use
one or more term sheets containing customary information with
respect to the final terms of the Securities in communications
conveying information relating to the offering to prospective
investors;
(iii) The Company represents
that it has treated or agrees that it will treat each such term
sheet the use of which has been consented to by the Company and the
Representatives in accordance with Sections 6(a)(i) and 6(a)(ii) as
an Issuer Free Writing Prospectus. Any such Issuer Free Writing
Prospectus (including the final term sheet prepared and filed
pursuant to Section 5(a) hereof) will be listed on
Schedule III to the Pricing Agreement;
(b) The Company has complied
and will comply with the requirements of Rule 433 under the
Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission or retention where required and
legending; and
(c) The Company agrees that
if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information
in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice
thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus
made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. The Company covenants and
agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements
and expenses of the Company’s counsel and accountants in
connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Indenture,
any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(c) hereof, including
the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue
Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any
filing fees incident to, and the fees and disbursements of counsel
for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any
Trustee
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and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection
with any Indenture and the Securities; and (viii) all other
costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in
this Section, and Sections 9 and 12 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they
may make.
8. The obligations of the
Underwriters of any Designated Securities under the Pricing
Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company
in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and correct, the
condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a)
hereof; the final term sheet contemplated by Section 5(a)
hereof, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act, shall have been filed
with the Commission within the applicable time periods prescribed
for such filings by Rule 433; if the Company has elected to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the
Commission; and all requests for additional information on the part
of the Commission shall have been complied with to the
Representatives’ reasonable satisfaction;
(b) Counsel for the
Underwriters shall have furnished to the Representatives such
written opinion or opinions (a draft of each such opinion is
attached as Annex III(a) hereto), dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of
the Company, the validity of the Indenture, the Designated
Securities, the Registration Statement, the Pricing Disclosure
Package, the Prospectus and such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) One or more counsel for
the Company satisfactory to the Representatives shall have
furnished to the Representatives their written opinion (a draft of
each such opinion is attached as Annex III(b) hereto), dated the
Time of Delivery for such Designated Securities, in form and
substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the Commonwealth of Massachusetts, with power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
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(ii) This Agreement and the
Pricing Agreement with respect to the Designated Securities have
been duly authorized, executed and delivered by the
Company;
(iii) The Designated
Securities have been duly authorized, executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Designated Securities and the Indenture conform
as to matters of law to the descriptions thereof in the
Prospectus;
(iv) The Indenture has been
duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws
of general applicability relating to or affecting creditors’
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(v) The issue and sale of the
Designated Securities and the compliance by the Company with all of
the provisions of the Designated Securities, the Indenture, this
Agreement and the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, nor
will such actions result in any violation of the provisions of the
Articles of Organization or By-laws of the Company or any statute
or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company
or any of its properties;
(vi) No consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or such
Pricing Agreement or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
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(vii) The statements set
forth in the Prospectus under the captions “Description of
Debt Securities” and “Description of the
Debentures”, insofar as they purport to constitute a summary
of the terms of the Securities, and under the caption “Plan
of Distribution” and “Underwriting”, insofar as
they purport to describe matters of law and legal conclusions, are
accurate and fair;
(viii) The Company is not
and, after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the
Pricing Disclosure Package and the Prospectus, will not be an
“investment company”, as such term is defined in the
Investment Company Act; and
(ix) The Registration
Statement and the Prospectus and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act and
the rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except to the extent referred to in the opinion in
subsection (vii) of this Section 8(c), they have no
reason to believe (A) that any part of the Registration
Statement, or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion), when such part or amendment became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the
Pricing Disclosure Package, as of the Applicable Time, contained
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleadi
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